Free Motion for Partial Summary Judgment - District Court of Federal Claims - federal

Case 1:05-cv-00231-EJD

Document 159

Filed 03/07/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS JZ Buckingham Investments, LLC, as Tax Matters Partner of JBJZ Partners, A South Carolina general partnership, Plaintiff, v. United States of America, Defendant. § § § § § § § § § § §

Case No. 05-231 T Chief Judge Edward Damich

PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO THE VALIDITY OF TREASURY REGULATION § 1.752-6 Pursuant to Rule 56 of the Rules of the Court of Federal Claims ("RCFC"), Plaintiff JZ Buckingham Investments, L.L.C. hereby moves for summary judgment in the above-captioned action. In support of this motion, Plaintiff submits the accompanying Proposed Findings of Uncontroverted Fact pursuant to RCFC 56(h)(1), an Appendix of attached exhibits, and a Memorandum of Law in Support of its Motion. As these materials demonstrate, there is no genuine issue of material fact, and Plaintiff is entitled to judgment as a matter of law. Specifically, Plaintiff is entitled to an order that Treasury Regulation 1.752-6 is invalid because (1) the Regulation's retroactive date fails to comply with the requirements for retroactive regulations under I.R.C. § 7805, (2) the Regulation is invalid under the two-prong test established in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), as it fails to carry out Congressional intent in a reasonable manner, and (3) the Regulation is invalid because the Treasury failed to follow, without good cause, the notice and comment requirements under the Administrative Procedure

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Case 1:05-cv-00231-EJD

Document 159

Filed 03/07/2008

Page 2 of 4

Act, 5 U.S.C. § 553 (1966). A finding on any one of these grounds is sufficient to invalidate the Regulation, and thus should compel this Court to grant Plaintiffs' Motion. WHEREFORE, JZ Buckingham respectfully requests that its Motion be granted, and that the Court enter judgment in its favor. Respectfully submitted, By: s/Joel N. Crouch __ Joel N. Crouch State Bar No. 05144220 M. Todd Welty State Bar No. 00788642

MEADOWS, COLLIER, REED, COUSINS & BLAU, L.L.P. 901 Main Street, Suite 3700 Dallas, TX 75202 (214) 744-3700 Telephone (214) 747-3732 Facsimile [email protected] [email protected] ATTORNEYS FOR PLAINTIFF

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Case 1:05-cv-00231-EJD

Document 159

Filed 03/07/2008

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CERTIFICATE OF CONFERENCE On this the 7th day of March, 2008, counsel for contacted counsel Plaintiff for the United States, David Steiner, regarding the relief sought in this Motion. Counsel for the United States stated that they opposed the granting of this Motion.

s/Anthony P. Daddino

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Case 1:05-cv-00231-EJD

Document 159

Filed 03/07/2008

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CERTIFICATE OF SERVICE I hereby certify that on March 7, 2008, a copy of the foregoing Motion for Partial Summary Judgment was served upon counsel listed below via electronic means. Dennis M. Donohue, Esq. United States Department of Justice Tax Division P.O. Box 26 Ben Franklin Station Washington DC 20044 (202) 616-3366

s/Joel N. Crouch Joel N. Crouch

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